State v. Oxendine , 330 N.C. 419 ( 1991 )

410 S.E.2d 884 (1991) 330 N.C. 419

STATE of North Carolina
v.
Stevie OXENDINE.

No. 591PA87.

Supreme Court of North Carolina.

December 6, 1991.

Lacy H. Thornburg, Atty. Gen. by G. Lawrence Reeves, Asst. Atty. Gen., Raleigh, for the State.

Malcolm Ray Hunter, Jr., Appellate Defender by M. Patricia Devine, Asst. Appellate Defender, Raleigh, for defendant appellant.

WEBB, Justice.

The defendant's only assignment of error deals with the prosecuting attorney's argument to the jury, which the defendant contends "exceeded the bounds of the relevant statutes in ways sufficiently numerous and egregious to infringe on defendant's right to a fair trial at the hands of an unprejudiced jury." See N.C.G.S. § 15A-1230 (1988). The defendant objected to only one part of the argument of the prosecuting attorney. For those parts of the argument to which he did not object and now assigns error, we must review them to determine whether they were so grossly improper that the trial court abused its discretion in failing to intervene ex mero motu to correct the error. State v. Jones, 317 N.C. 487, 346 S.E.2d 657 (1986).

The prosecutor argued to the jury that the deceased was afraid of the defendant, that she had been the victim of physical threats and torture and on one occasion she had been beaten with a shoe. The defendant says this was an improper argument. There was testimony that the defendant had hit the deceased with a shoe. There was also testimony that the defendant had beaten the deceased and had threatened her. This would support an inference that she was afraid of him. This argument was properly made. State v. Williams, 317 N.C. 474, 346 S.E.2d 405 (1986).

The defendant also argues that it was improper for the prosecuting attorney to argue that the deceased was working because she was "trying to get enough money to get the lights cut back on" and "he got out [of the truck] in the most cowardly way and went over there and put a gun straight to her head and blew her head off." There was evidence that the defendant and his wife had argued over the light bill, although there was no evidence that the electricity had been cut off. There was evidence that the defendant had left his truck and walked over to his wife and shot her in the head, although there was no evidence that he had shot her head off. There was no objection to these arguments and they were not so grossly improper that the court should have intervened ex mero motu.

The defendant next contends it was error for the prosecuting attorney to argue that the defendant's wife had said "I'd rather be dead than live another night in that house with him." The court had excluded testimony to this effect at the trial. Again there was no objection to this argument by the defense attorney. The prosecuting attorney may have exaggerated the deceased's feelings, but it is a reasonable inference that she did not want to live any longer with the defendant. This statement was not so grossly improper that the court should have intervened ex mero motu.

The defendant next says that in arguing the element of malice in the law of homicide, the prosecuting attorney made "a dangerous and unauthorized detour into psychology and/or religion for impressionable jurors." The prosecuting attorney argued to the jury that the attitude of the defendant towards his wife, which included "meanness, hate, possessiveness, wanting to control, wanting to stifle another human being, wanting to own her, wanting to make sure no one else has her," constituted malice. He then argued that in biblical times the Greeks had more than one word for love. There was agape which was a selfless love which makes one look out for his fellow man. There was eros which was love based on the physical attraction of a woman for a man. The prosecuting attorney argued there could be a dark side to this type of love and cause a man to lose his normal judgment. He argued that this could develop into "possessive, clinging, hating love." The prosecuting attorney said this was the type love the defendant had for his wife and it caused him to kill her.

The defendant did not object to this argument. We hold it was not erroneous. The qualities which the prosecuting attorney said constituted malice were examples of matters that would be hatred or ill will, which is malice under the law of homicide. State v. Foust, 258 N.C. 453, 128 S.E.2d 889 (1963). The argument as to eros as a type of love that has a dark side and can cause a person to kill was based on common knowledge and experience. It was a proper argument.

In his last argument, the defendant says that the prosecuting attorney invited the jury to speculate on the motive of the defendant in inflicting a wound on himself. This is the only part of the State's argument to the jury to which the defendant objected.

The prosecuting attorney argued to the jury that the defendant did not intend to kill himself. He argued that the defendant shot his wife in the head, knowing a wound so inflicted would be fatal, and then shot himself in the stomach. If he had intended to kill himself, he would have shot himself in the head. The defendant's shooting himself, said the prosecuting attorney, was intended to create sympathy as was the letter he wrote to Mr. and Mrs. Butler. The defendant argues there was no evidence that the defendant shot himself in the stomach and that "the reasonable inference to be drawn from the [letter was] that he intended to kill both himself and his wife."

As to the defendant's argument that there was no evidence that the defendant shot himself in the stomach, there was testimony by a witness that she saw the defendant pointing the pistol towards the area of his stomach. The evidence was undisputed that the wound of the defendant's wife was fatal and the wound of the defendant was not. This would support the inference for which the prosecuting attorney argued, that the defendant did not intend to kill himself. If this be the case, it could be inferred the letter was written by the defendant to create sympathy for himself. We hold that this was a proper argument.

The defendant's assignment of error is overruled.

NO ERROR.